UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
Filed by the Registrant ☒
Filed by a Party other than the Registrant ☐
Check the appropriate box:
| ☐ | Preliminary Proxy Statement |
| ☐ | Confidential, For Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
| ☒ | Definitive Proxy Statement |
☐ | Definitive Additional Materials |
☐ | Soliciting
Material Pursuant to Rule 14a-11(c) or rule 14a-12 |
OPGEN, INC.
(Name of Registrant
as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if
Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
| ☐ | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
| (1) | Title of each class of securities to which transaction applies: |
| (2) | Aggregate number of securities to which transaction applies: |
| (3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11: |
| (4) | Proposed maximum aggregate value of transaction: |
| ☐ | Fee paid previously with preliminary materials: |
| ☐ | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration statement number, or the form or schedule and the date
of its filing. |
| (1) | Amount previously paid: |
| (2) | Form, Schedule or Registration Statement no.: |
9717 Key West Ave,
Suite 100
Rockville, MD 20850
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 30, 2023
May 22, 2023
Dear Stockholders of OpGen, Inc.:
You are cordially invited to a Special Meeting of Stockholders (the
“Special Meeting”) of OpGen, Inc. (the “Company”) to be held at the Company’s offices located at 9717 Key
West Ave, Suite 100, Rockville, MD 20850, on June 30, 2023, beginning at 10:00 am, local time.
The Special Meeting has been called by the Board of Directors to
submit to stockholders for approval the following matters:
| 1. | The approval, pursuant to Nasdaq listing rules, of the issuance of up to 10,892,728 shares of our common stock upon the exercise of
our common stock purchase warrants issued to an institutional investor in and in connection with our best efforts public offering that
closed on May 4, 2023 that may be equal to or exceed 20% of our common stock outstanding before
such offering (the “Warrant Exercise Proposal”). |
| 2. | The approval of a proposal to adjourn the special meeting to a later date, if necessary or appropriate, to permit further solicitation
and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the approval of the Warrant Exercise
Proposal. |
A Proxy Statement describing these matters to be acted upon at the
Special Meeting is attached. No other matters will be considered at the Special Meeting.
Your vote is important. The close of business on May 10, 2023 has
been fixed as the record date for the determination of stockholders of the Company entitled to notice of, and to vote at, the Special
Meeting. Only stockholders of record at the close of business on May 10, 2023 are entitled to notice of, and to vote at, the Special Meeting
and any adjournment or postponement thereof.
Enclosed is a proxy that will entitle you to vote your shares on
the matters presented at the Special Meeting, even if you are unable to attend in person. Please mark the proxy to indicate your vote,
date and sign the proxy and return it in the enclosed envelope as soon as possible for receipt prior to the Special Meeting, or follow
the instructions in the accompanying proxy materials to vote via the internet. Regardless of the number of shares you own, please be sure
you are represented at the Special Meeting either by attending in person or by returning your proxy or voting on the internet as soon
as possible.
On behalf of OpGen, Inc., I thank you for your ongoing interest
and investment in our company.
Sincerely,
William E. Rhodes, III
Chairman of the Board of Directors
9717 Key West Ave,
Suite 100
Rockville, MD 20850
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 30, 2023
May 22, 2023
Dear Stockholders of OpGen, Inc.:
The Board of Directors (the “Board”) of OpGen, Inc.,
a Delaware corporation (the “Company”) has called for a Special Meeting of stockholders (the “Special Meeting”),
to be held at the Company’s offices located at 9717 Key West Ave, Suite 100, Rockville, MD 20850 on June 30, 2023, beginning at
10:00 am local time, for the following purposes:
| 1. | Warrant Exercise. Stockholder approval of the issuance of up to 10,892,728 shares of our common stock upon the exercise of
our common stock purchase warrants issued to an institutional investor in and in connection with our best efforts public offering that
closed on May 4, 2023 that may be equal to or exceed 20% of our common stock outstanding before
such offering (the “Warrant Exercise Proposal”); and |
| 2. | Adjournment Proposal. Stockholder approval of a proposal to adjourn the Special Meeting to a later date, if necessary or appropriate,
to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with,
the approval of the Warrant Exercise Proposal. |
No other matters will be considered at the Special Meeting.
Pursuant to the Company’s Amended and Restated Bylaws, as
amended (the “Bylaws”), the Board has fixed the close of business on May 10, 2023 as the record date for determination of
the stockholders entitled to vote at the Special Meeting and any adjournments or postponements thereof. Please complete, sign and
submit your proxy, which is solicited by the Board of Directors, as soon as possible so that your shares can be voted at the Special
Meeting in accordance with your instructions. You can ensure that your shares are voted at the Special Meeting by voting via the internet
or by completing, signing and returning the enclosed proxy. If you do attend the Special Meeting, you may then withdraw your proxy
and vote your shares in person. In any event, you may revoke your proxy prior to its exercise. Shares represented by proxies that are
returned properly signed but unmarked will be voted in favor of proposals made by us.
This Notice of Special Meeting of Stockholders, Proxy Statement
and the proxy card are available online at: https://annualgeneralmeetings.com/opgnsp2023.
BY ORDER OF THE BOARD OF DIRECTORS,
Oliver Schacht, Ph.D.
Chief Executive Officer
SPECIAL MEETING OF STOCKHOLDERS
PROXY STATEMENT
Table of Contents
Page
9717 Key West Ave, Suite 100
Rockville, MD 20850
SPECIAL MEETING PROXY STATEMENT
IMPORTANT NOTICE REGARDING
THE AVAILABILITY OF PROXY MATERIALS FOR THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON JUNE 30, 2023
The Notice of Special Meeting, Proxy Statement and
Proxy are available at: https://annualgeneralmeetings.com/opgnsp2023
We are making these proxy materials available to you in connection
with the solicitation of proxies by the Board of Directors (the “Board”) of OpGen, Inc. (the “Company”) for a
Special Meeting of Stockholders (the “Special Meeting”) and for any adjournment or postponement of the Special Meeting. The
mailing of the notice of internet availability of these proxy materials will commence on May 22, 2023.
The Special Meeting will be held at the Company’s offices
located at 9717 Key West Ave, Suite 100, Rockville, MD 20850 on June 30, 2023, beginning at 10:00 am, local time. In this Proxy Statement,
“we,” “us,” “our,” “OpGen” and the “Company” refer to OpGen, Inc.
This Proxy Statement is being made available to you because you
own shares of our common stock, par value $0.01 per share, as of the record date, which entitles you to vote at the Special Meeting. By
use of a proxy, you can vote whether or not you attend the Special Meeting. This Proxy Statement describes the matters we would like you
to vote on and provides information on those matters.
QUESTIONS AND ANSWERS
ABOUT THE SPECIAL MEETING
Q: What is the purpose of the Special Meeting?
A: The purposes of the Special Meeting are
to hold a stockholder vote on the following matters:
| 1. | Warrant Exercise. A vote to approve the issuance of up to 10,892,728 shares of our common stock upon the exercise of our common
stock purchase warrants issued to an institutional investor in and in connection with our best efforts public offering that closed on
May 4, 2023 that may be equal to or exceed 20% of our common stock outstanding before such offering
(the “Warrant Exercise Proposal”); and |
| 2. | Adjournment Proposal. The approval of a proposal to adjourn the annual or special meeting to a later date, if necessary or
appropriate, to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection
with, the approval of the Warrant Exercise Proposal. |
Other than these proposals, no other proposals will be presented
for a vote at the Special Meeting.
Q: Who is entitled to vote at the Special Meeting?
A: Holders of record of our common stock as of the close of business
on May 10, 2023, the record date for the Special Meeting, or the Record Date, will be entitled to notice of and to vote at the Special
Meeting and at any adjournments or postponements thereof. Holders of record of shares of common stock are entitled to vote on all matters
brought before the Special Meeting.
As of the Record Date, there were 6,119,449 shares of common
stock outstanding and entitled to vote. Holders are entitled to one vote for each share of common stock outstanding as of the Record Date.
You do not need to attend the Special Meeting to vote your shares.
Instead, you may vote your shares by marking, signing, dating and returning the enclosed proxy card or voting through the internet.
Q: How do I vote?
A: You may vote in person at the Special Meeting, vote by proxy through the
internet or vote by proxy using the enclosed proxy card. To vote through the internet, go to https://annualgeneralmeetings.com/opgnsp2023
and complete an electronic proxy card. You will be asked for a Control Number, which has been provided with the Notice of Internet Availability.
Whether you plan to attend the Special Meeting or not, we urge you
to vote by proxy to ensure your vote is counted. Voting by proxy will not affect your right to attend the Special Meeting and vote. If
you vote via the internet or properly complete your proxy card and submit it to us in time, the “proxy” (one of the individuals
named on the proxy card) will vote your shares as you have directed. If you sign the proxy card but do not make specific choices, the
proxy will vote your shares as recommended by the Board and, as to any other matters properly brought before the Special Meeting, in the
sole discretion of the proxy.
Q: What
shares may I vote?
A: You
may vote all shares of common stock of the Company that you owned as of the close of business on the Record Date. These shares include:
|
1. |
those held directly in your name as the stockholder of record; and |
| 2. | those held for you as the beneficial owner through a bank, broker or other financial intermediary at the close of business
on the record date. |
Each share of common stock is entitled to one vote.
Q: What
is the difference between holding shares as a stockholder of record and as a beneficial owner?
A: Most stockholders hold their shares through
a bank, broker or other financial intermediary rather than directly in their own name. As summarized below, there are some distinctions
between shares held of record and shares held beneficially.
Stockholder of Record: If your shares are
registered directly in your name with OpGen’s transfer agent, Pacific Stock Transfer Company, or the Transfer Agent, you are considered,
with respect to those shares, the stockholder of record. As the stockholder of record, you have the right to grant your proxy directly
to OpGen or to vote your shares in person at the Special Meeting.
Beneficial Owner: If you hold shares in
a stock brokerage account or through a bank or other financial intermediary, you are considered the beneficial owner of shares
held in street name. Your bank, broker or other financial intermediary is considered, with respect to those shares, the stockholder
of record. As the beneficial owner, you have the right to direct your bank, broker or other financial intermediary on how to vote your
shares, but because you are not the stockholder of record, you may not vote these shares in person at the Special Meeting unless you obtain
a signed proxy from the stockholder of record giving you the right to vote the shares. As a beneficial owner, you are, however, welcome
to attend the Special Meeting.
Q: What are the recommendations of the Board?
A The Board recommends
that you vote:
| 1. | “FOR” the Warrant Exercise Proposal; and |
| 2. | “FOR” the proposal to adjourn the Special Meeting if the Warrant Exercise Proposal is not approved by the requisite
vote. |
No other matters may be brought before the Special Meeting.
Q: What constitutes a quorum at the Special Meeting?
A. The presence in person or by proxy of the holders of thirty-four
percent (34%) of the votes represented by the outstanding common stock is necessary to constitute a quorum at the Special Meeting. As of the Record Date, there were 6,119,449 shares of our common stock
outstanding, entitled to one vote per share. The presence of the holders of at least 2,080,613 of the votes entitled to be cast at the
meeting will be required to establish a quorum. Both abstentions
and broker non-votes, if any, are counted as present for determining the presence of a quorum.
Q: What vote is required to approve each proposal?
A: Each proposal has its own vote requirement as follows:
Proposal No. One: Approval of the Warrant Exercise Proposal.
The Warrant Exercise Proposal requires the affirmative vote of a majority of the votes cast by all stockholders present in person or represented
by proxy at the Special Meeting and entitled to vote on the proposal.
Proposal No. Two: Adjournment. The approval
of the adjournment proposal requires the affirmative vote of a majority of the votes cast by all stockholders present in person or represented
by proxy at the Special Meeting and entitled to vote on the proposal.
The holders of common stock have the right to
cast one (1) vote per share of common stock on the proposals.
Q: What is the effect of abstentions and broker non-votes?
A: An “abstention”
occurs when a stockholder sends in a proxy with explicit instructions to decline to vote regarding a particular matter or attends the
Special Meeting and elects not to vote or fails to cast a ballot. Abstentions are treated as shares present in person or by proxy and
entitled to vote, so abstaining has the same effect as a negative vote for purposes of determining whether our stockholders approved
the proposals presented.
A “broker non-vote”
occurs when a broker has not received voting instructions from the beneficial owner and the broker does not have discretionary
authority to vote the shares because the proposal is non-routine. We believe that the Warrant Exercise Proposal will be considered a
non-routine matter under applicable rules, while the adjournment proposal will be considered a routine matter. Accordingly, brokers who
do not receive instructions from the beneficial owner will be entitled to vote such owners shares in its discretion solely on the
adjournment proposal. Broker non-votes will however have no effect on the outcome of the Warrant Exercise Proposal.
Q: May I change my vote?
A. Yes. You may change
your proxy instructions or revoke your proxy at any time prior to the vote at the Special Meeting. For shares held directly in your name,
you may accomplish this by: (a) delivering a written notice of revocation to the Secretary of the Company or the Secretary’s designated
agent bearing a later date than the proxy being revoked, (b) signing and delivering a later dated written proxy relating to the same shares,
or (c) attending the Special Meeting and voting in person (although attendance at the Special Meeting will not in and of itself constitute
a revocation of a proxy). For shares held in street name, you may change your vote by submitting new voting instructions to your broker,
trustee or nominee.
Q: Who is paying for this proxy solicitation?
A. We are paying for this
proxy solicitation. Our officers and other regular employees may solicit proxies by mail, in person or by telephone or telecopy. These
officers and other regular employees will not receive additional compensation. The Company may retain a third party proxy solicitor for
the Special Meeting, whose costs, if retained, we estimate would be approximately $10,000. We will reimburse banks, brokers, nominees,
custodians and fiduciaries for their reasonable out-of-pocket expenses incurred in sending the proxy materials to beneficial owners of
the shares.
Q: How
can I find out the results of the voting at the Special Meeting?
A: Preliminary voting results will be announced
at the Special Meeting. In addition, final voting results will be published in a Current Report on Form 8-K that we expect to file within
four business days after the completion of the Special Meeting.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The number of shares of the Company’s common
stock outstanding at the close of business on April 30, 2023 was 5,514,449 shares. The following table sets forth the beneficial ownership
of the Company’s common stock, as of April 30, 2023, by each Company director and executive officer, and by all directors and executive
officers as a group. Beneficial ownership is determined in accordance with Rule 13d-3 under the Exchange Act. In computing the number
of shares beneficially owned by a person or a group and the percentage ownership of that person or group, shares of our common stock subject
to options and warrants currently exercisable or exercisable within 60 days after April 30, 2023 are deemed outstanding, but are not deemed
outstanding for the purpose of computing the percentage ownership of any other person. To the knowledge of the directors and executive
officers of the Company, as of April 30, 2023, there are no persons and/or companies who or which beneficially own, directly or indirectly,
shares representing more than 5% of the voting rights attached to all outstanding shares of the Company, other than as set forth below.
Unless otherwise indicated, the address of each beneficial owner listed below is c/o OpGen, Inc., 9717 Key West Ave, Suite 100, Rockville,
MD 20850.
Name and Address
of Beneficial Owner | |
Number
of Shares of common stock | | |
Percentage
Beneficially Owned | |
| |
| | |
| |
Directors and Named Executive Officers | |
| | | |
| | |
Johannes Bacher (1) | |
| 23,822 | | |
| * | |
Mario Crovetto (2) | |
| 4,165 | | |
| * | |
R. Donald Elsey (3) | |
| 4,075 | | |
| * | |
Prabhavathi Fernandes, Ph.D. (4) | |
| 4,165 | | |
| * | |
William E. Rhodes, III (5) | |
| 4,165 | | |
| * | |
Yvonne Schlaeppi | |
| — | | |
| * | |
Oliver Schacht, Ph.D. (6) | |
| 48,134 | | |
| * | |
Albert Weber (7) | |
| 3,281 | | |
| * | |
All current Directors and Executive Officers as a group (7 individuals) (8) | |
| 91,807 | | |
| 1.66 | % |
* Constitutes less than 1% of our outstanding common stock.
|
(1) |
Consists of (i) 12,684 shares of common stock and (ii) stock options to purchase 11,138 shares of common stock that are currently vested or that will become vested within 60 days. |
|
|
|
|
(2) |
Consists of (i) 750 shares of common stock, (ii) stock options to purchase 2,665 shares of common stock that are currently vested or that will become vested within 60 days, and (iii) 750 shares of common stock that are subject to restricted stock units and that will become vested within 60 days. |
|
|
|
|
(3) |
Consists of (i) 825 shares of common stock, (ii) stock options to purchase 2,500 shares of common stock that are currently vested or that will become vested within 60 days, and (iii) 750 shares of common stock that are subject to restricted stock units and that will become vested within 60 days. |
|
|
|
|
(4) |
Consists of (i) 750 shares of common stock, (ii) stock options to purchase 2,665 shares of common stock that are currently vested or that will become vested within 60 days, and (iii) 750 shares of common stock that are subject to restricted stock units and that will become vested within 60 days. |
|
|
|
|
(5) |
Consists of (i) 750 shares of common stock, (ii) stock options to purchase 2,665 shares of common stock that are currently vested or that will become vested within 60 days, and (iii) 750 shares of common stock that are subject to restricted stock units and that will become vested within 60 days. |
|
|
|
|
(6) |
Consists of (i) 19,719 shares of common stock, (ii) 250 shares of common stock owned by Mr. Schacht’s child, and (iii) stock options to purchase 28,165 shares of common stock that are currently vested or that will become vested within 60 days. |
|
|
|
|
(7) |
Consists of stock options to purchase 3,281 shares of common stock that are currently vested or that will become vested within 60 days. |
|
|
|
|
(8) |
See the beneficial ownership described in footnotes (1) through (7). |
PROPOSALS TO BE ACTED
UPON AT THE SPECIAL MEETING
PROPOSAL NO. ONE – APPROVAL OF THE
ISSUANCE OF UP TO 10,892,728 SHARES OF COMMON STOCK UPON THE EXERCISE OF WARRANTS.
General
We are seeking
stockholder approval for the issuance of up to 10,892,728 shares of our common stock upon the exercise of common stock purchase warrants
that were issued in and in connection with our best efforts public offering that closed on May 4, 2023 (the “Offering”) as
contemplated by Nasdaq Listing Rules.
On May 1, 2023,
we entered into a securities purchase agreement with an institutional investor (the “Investor”), pursuant to which we sold
(i) 605,000 shares of the Company’s common stock, par value $0.01 per share, (ii) pre-funded warrants to purchase up to an aggregate
of 3,890,825 shares of common stock (the “Pre-funded Warrants”), and (iii) common warrants to purchase up to an aggregate
of 4,495,825 shares of common stock (the “New Common Warrants”). Each share of common stock and accompanying New Common Warrant
was sold at a price of $0.7785 per share and accompanying New Common Warrant, and each Pre-funded Warrant and accompanying New Common
Warrant was sold at an offering price of $0.7685 per share underlying such Pre-funded Warrant and accompanying New Common Warrant.
In connection
with the Offering, the Company also entered into a warrant amendment agreement (the “Warrant Amendment Agreement”) with the
Investor. Under the Warrant Amendment Agreement, the Company agreed to amend certain existing warrants to purchase up to 6,396,903 shares
of common stock that were previously issued in 2018, 2021, 2022 and 2023 to the Investor, with exercise prices ranging from $2.65 to $7.54
per share (the “Existing Warrants” and together with the New Common Warrants, the “Common Warrants”), in consideration
for their purchase of the securities in the Offering, as follows: (i) lower the exercise price of the Existing Warrants to $0.7785 per
share, (ii) provide that the Existing Warrants, as amended, will not be exercisable until the receipt of stockholder approval for the
exercisability of the New Common Warrants in the Offering, and (iii) extend the original expiration date of the Existing Warrants by five
years following the receipt of such stockholder approval.
The Offering
closed on May 4, 2023. The gross proceeds received by us from the Offering were approximately $3.5 million before deducting the placement
agent’s fees and the offering expenses. The Company intends to use the net proceeds from the Offering to: (i) support continued
commercialization of its FDA-cleared Acuitas AMR Gene Panel test for isolates in the U.S.; (ii) commercialize its products with a focus
on the Unyvero Platform and diagnostic tests; (iii) support continued research and development, clinical trials and regulatory submissions
for its Unyvero products; (iv) support further development and commercialization of the Ares Genetics database and service offerings;
(v) support directed sales and marketing efforts to the customers and collaborators for our products and services; (vi) invest in manufacturing
and operations infrastructure to support sales of products; and (vii) repay certain outstanding indebtedness of the Company and its subsidiaries.
The Company intends to use the remaining net proceeds for working capital and other general corporate purposes.
Description of Common Warrants
Pursuant to Nasdaq Stock Market Rule
5635(d), the Common Warrants are not exercisable until our stockholders approve the issuance of shares of common stock issuable upon
exercise of the Common Warrants (“Warrant Approval”). We have agreed with the Investor that if we do not obtain Warrant
Approval at any special meeting of our stockholders, we will call an additional shareholder meeting every 70 days thereafter until
the earlier of the date we obtain such approval or the warrants are no longer outstanding. Each Common Warrant will expire on the
five-year anniversary of the receipt of Warrant Approval.
The Common Warrants each have an initial exercise
price of $0.7785 per share, and are exercisable beginning on the date the Warrant Approval is obtained, if at all. Each Common Warrant
may be exercised, in cash or by a cashless exercise at the election of the holder at any time beginning on the effective date of Warrant
Approval and from time to time thereafter through and including the five year anniversary of the effective date of Warrant Approval.
No Fractional Shares
No fractional shares or scrip representing fractional
shares will be issued upon the exercise of the Common Warrants. As to any fraction of a share which the holder would otherwise be entitled
to purchase upon such exercise, the number of shares of common stock to be issued will be rounded up to the nearest whole number.
Failure to Timely Deliver Shares
If we fail to deliver to the holder a certificate
representing shares issuable upon exercise of a Common Warrant or to credit the holder’s balance account with Depository Trust Company
for such number of shares of common stock to which the holder is entitled upon the holder’s exercise of the Common Warrant, in each
case, by the delivery date set forth in the Common Warrant, and if after such date the holder is required by its broker to purchase (in
an open market transaction or otherwise) or the holder’s brokerage firm otherwise purchases, shares of common stock to deliver in
satisfaction of a sale by the holder of the warrant shares which the holder anticipated receiving upon such exercise, or a Buy-In, then
we shall (A) pay in cash to the holder the amount, if any, by which (x) the holder’s total purchase price (including brokerage commissions,
if any) for the shares of common stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of warrant shares that
we were required to deliver to the holder in connection with the exercise at issue, times (2) the price at which the sell order giving
rise to such purchase obligation was executed, and (B) at the option of the holder, either reinstate the portion of the applicable warrant
and equivalent number of warrant shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded)
or deliver to the holder the number of shares of common stock that would have been issued had we timely complied with our exercise and
delivery obligations. In addition, if we fail to deliver to the holder any common stock pursuant to a validly-exercised Common Warrant,
we will be required to pay liquidated damages in the amount of $10 per trading day for each $1,000 of the shares of common stock exercised
but not delivered (and rising to $20 per trading day beginning the third trading day after the warrant share delivery date) until such
time the shares of common stock are delivered or the holder rescinds such exercise.
Exercise Limitation
In general, a holder of the Common Warrants does not
have the right to exercise any portion of a Common Warrant if the holder (together with its Attribution Parties (as defined in the Common
Warrant)) would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding immediately after giving effect
to the exercise, as such percentage ownership is determined in accordance with the terms of the warrant. However, any holder may increase
or decrease such percentage to any other percentage not in excess of 9.99% upon notice to us, provided that any increase in this limitation
will not be effective until 61 days after such notice from the holder to us and such increase or decrease will apply only to the holder
providing such notice.
Cashless Exercise
If, at the time a holder exercises its Common Warrants,
a registration statement registering the issuance of the shares of common stock underlying the Common Warrants under the Securities Act
of 1933, as amended, is not then effective or available for the issuance of such shares, then in lieu of making the cash payment otherwise
contemplated to be made to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon
such exercise (either in whole or in part) the net number of shares of common stock determined according to a formula set forth in the
warrant.
Adjustment for Stock Splits
The exercise price and the number of shares of common
stock purchasable upon the exercise of the Common Warrants are subject to adjustment upon the occurrence of specific events, including
sales of additional shares of common stock, stock dividends, stock splits, and combinations of our common stock.
Dividends or Distributions
If we declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of our common stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property, options, evidence of indebtedness or any other assets
by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) at any
time after the issuance of the common warrants, then, in each such case, the holders of the Common Warrants shall be entitled to participate
in such distribution to the same extent that the holders would have participated therein if the holders had held the number of shares
of common stock acquirable upon complete exercise of the Common Warrants.
Purchase Rights
If we grant, issue or sell any shares of our common
stock or securities exercisable for, exchangeable for or convertible into our common stock, or rights to purchase stock, common warrants,
securities or other property pro rata to the record holders of any class of shares of our common stock, referred to as Purchase Rights,
then each holder of the Common Warrants will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which the holder could have acquired if the holder had held the number of shares of common stock acquirable upon complete
exercise of the Common Warrants immediately before the record date, or, if no such record is taken, the date as of which the record holders
of shares of common stock are to be determined, for the grant, issue or sale of such Purchase Rights.
Fundamental Transaction
If a Fundamental Transaction (as defined below) occurs,
then the successor entity will succeed to, and be substituted for us, and may exercise every right and power that we may exercise and
will assume all of our obligations under the Common Warrants with the same effect as if such successor entity had been named in the common
warrant itself. Additionally, upon consummation of a Fundamental Transaction pursuant to which holders of shares of our common stock are
entitled to receive securities or other assets with respect to or in exchange for shares of our common stock, we will make appropriate
provision to ensure that the holder will thereafter have the right to receive upon an exercise of the Common Warrants at any time after
the consummation of the Fundamental Transaction but prior to the applicable expiration date of the common warrants, in lieu of shares
of our common stock (or other securities, cash, assets or other property) purchasable upon the exercise of the Common Warrant prior to
such Fundamental Transaction, at the option of each holder (without regard to any limitation in the common warrant on the exercise of
the Common Warrants), the number of shares of common stock of the successor or acquiring corporation or of us, if we are the surviving
corporation, and any additional consideration which the holder would have been entitled to receive upon the happening of such Fundamental
Transaction had the Common Warrants been exercised immediately prior to such Fundamental Transaction.
If holders of our common stock are given a choice
as to the securities, cash or property to be received in a Fundamental Transaction, then the holder shall be given the same choice as
to the consideration it receives upon any exercise of the Common Warrants, following such Fundamental Transaction. These provisions apply
similarly and equally to successive Fundamental Transactions and other corporate events described in the Common Warrants and will be applied
without regard to any limitations on the exercise of the Common Warrants.
In the event of a Fundamental Transaction, at the
request of the holder, we or the successor entity shall purchase the unexercised portion of the Common Warrants from the holder by paying
to the holder, on or prior to the second trading day after such request (or, if later, on the effective date of the Fundamental Transaction),
cash in an amount equal to the Black-Scholes Value (as defined below) of the remaining unexercised portion of the common warrants on the
date of such Fundamental Transaction.
A “Fundamental Transaction” is defined
in the Common Warrants to mean (i) we, directly or indirectly, in one or more related transactions effect any merger or consolidation
with or into another person, (ii) we or any subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer,
conveyance or other disposition of all or substantially all of our assets in one or a series of related transactions, (iii) any, direct
or indirect, purchase offer, tender offer or exchange offer (whether by us or another Person) is completed pursuant to which holders of
common stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the
holders of 50% or more of the outstanding common stock or 50% or more of the voting power of the common equity, (iv) we, directly or indirectly,
in one or more related transactions effect any reclassification, reorganization or recapitalization of our common stock or any compulsory
share exchange pursuant to which our common stock is effectively converted into or exchanged for other securities, cash or property, or
(v) we, directly or indirectly, in one or more related transactions consummate a stock or share purchase agreement or other business combination
(including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or
group of Persons whereby such other Person or group acquires more than 50% of the outstanding shares of our common stock or 50% or more
of the voting power of the common equity.
Transferability
Subject to applicable laws, the Common Warrants may
be offered for sale, sold, transferred or assigned. There is currently no trading market for the Common Warrants and a trading market
is not expected to develop.
Rights as a Stockholder
Except as otherwise provided in the common warrants
or by virtue of a holder’s ownership of shares of our common stock, the holders of the Common Warrants do not have the rights or
privileges of holders of our common stock, including any voting rights, unless and until they exercise their Common Warrants.
Amendments
The Common Warrants may be amended with the written
consent of the holder of such Common Warrant and us.
Listing
There is no established public trading market for
the Common Warrants, and we do not expect a market to develop. In addition, we do not intend to apply for listing of the Common Warrants
on any national securities exchange.
Reasons for the Warrant Exercise Proposal
Our common stock is listed on The Nasdaq Capital Stock Market (“Nasdaq”)
and trades under the ticker symbol “OPGN.” Nasdaq Listing Rule 5635(d) requires stockholder approval of transactions other
than public offerings of greater than 20% of the outstanding common stock or voting power of the issuer prior to the Offering. In determining
whether an offering qualifies as a public offering, Nasdaq considers all relevant factors, including the extent of any discount to market
price. In determining discount, Nasdaq generally attributes a value of $0.125 for each warrant offered with a share of common stock, which
value is generally deemed to be a discount. In order to ensure that the Offering qualified as a public offering under Rule 5635 due to
the value attributable to the Common Warrants, the Common Warrants provide that they may not be exercised, and therefore have no value, until
stockholder approval of their exercise is obtained.
Potential Consequences if Proposal No. 1 is Not Approved
The Board is not seeking the approval of our stockholders to authorize
our entry into or consummation of the transactions contemplated by the securities purchase agreement, as the Offering has already been
completed and the Common Warrants have already been issued. We are only asking for approval to issue the shares underlying the Common
Warrants upon exercise thereof.
The failure of our stockholders to approve this Proposal No. 1
will mean that: (i) we cannot permit the exercise of the Common Warrants and (ii) may incur substantial additional costs and
expenses.
Each Common Warrant has an initial exercise price of $0.7785
per share. Accordingly, we would realize an aggregate of up to approximately $8.5 million in gross proceeds if all the Common
Warrants were exercised based on such value. If the Common Warrants cannot be exercised, we will not receive any such proceeds,
which could adversely impact our ability to fund our operations.
In addition, in connection with the Offering and the issuance of
Common Warrants, we agreed to seek stockholder approval every 70 days until our stockholders approve the issuance of the shares underlying
the Common Warrants. We are required to seek such approval until such time as none of the Common Warrants are outstanding which could
result in us seeking such approval every 70 days for five years. The costs and expenses associated with seeking such approval could materially
adversely impact our ability to fund our operations and advance the clinical trials, regulatory approvals for, and commercialization of
our products and product candidates.
Potential Adverse Effects of the Approval of Proposal No. 1
If this Proposal No. 1 is approved, existing stockholders will
suffer dilution in their ownership interests in the future upon the issuance of shares of common stock upon exercise of the Common
Warrants. Assuming the full exercise of the Common Warrants, an aggregate of 10,892,728 additional shares of common stock will be
outstanding, and the ownership interest of our existing stockholders would be correspondingly reduced. In addition, the sale into
the public market of these shares also could materially and adversely affect the market price of our common stock.
No Appraisal Rights
No appraisal rights are available
under the General Corporation Law of the State of Delaware or under our Certificate, or our Amended and Restated Bylaws, as amended, with
respect to the Warrant Exercise Proposal.
Required Vote
The affirmative vote of a majority
of the votes cast by all stockholders present in person or represented by proxy at the Special Meeting and entitled to vote is required
for approval of this proposal. Abstentions will have the same effect as votes against this proposal. As noted above, we believe that this
proposal will be considered “non-routine” and therefore broker non-votes will have no effect on the outcome of this proposal.
Recommendation of the Board of Directors
The Board unanimously recommends
that you vote “FOR” Proposal No. One to approve the Warrant Exercise Proposal.
PROPOSAL NO. TWO - TO APPROVE THE ADJOURNMENT
OF THE SPECIAL MEETING, IF NECESSARY, TO SOLICIT ADDITIONAL PROXIES IF THERE ARE INSUFFICIENT VOTES AT THE TIME OF THE SPECIAL MEETING
TO APPROVE PROPOSAL NO. ONE (WARRANT EXERCISE PROPOSAL).
Background of and Rationale for the Proposal
The Board believes that if the number of shares of the Company’s
common stock outstanding and entitled to vote at the Special Meeting is insufficient to approve Proposal No. One (the Warrant Exercise
Proposal), it is in the best interests of the stockholders to enable the Board to continue to seek to obtain a sufficient number of additional
votes to approve the Warrant Exercise Proposal (the “Adjournment Proposal”).
In the Adjournment Proposal, we are asking stockholders to authorize
the holder of any proxy solicited by the Board to vote in favor of adjourning or postponing the Special Meeting or any adjournment or
postponement thereof. If our stockholders approve this proposal, we could adjourn or postpone the Special Meeting, and any adjourned session
of the Special Meeting, to use the additional time to solicit additional proxies in favor of the Warrant Exercise Proposal.
Additionally, approval of the Adjournment Proposal could mean that,
in the event we receive proxies indicating that a majority of the number of outstanding shares of our common stock will vote against the
Warrant Exercise Proposal, we could adjourn or postpone the Special Meeting without a vote on the proposal and use the additional time
to solicit the holders of those shares to change their vote in favor of the Warrant Exercise Proposal.
If it is necessary or appropriate (as determined in good faith by
the Board) to adjourn the Special Meeting, no notice of the adjourned meeting is required to be given to our stockholders, other than
an announcement at the Special Meeting of the time and place to which the Special Meeting is adjourned, so long as the meeting is adjourned
for 30 days or less and no new record date is fixed for the adjourned meeting. At the adjourned meeting, we may transact any business
which might have been transacted at the original meeting.
Required Vote
The affirmative vote of a majority of the votes cast at the Special
Meeting will be required to approve the Adjournment Proposal.
Recommendation of the Board of Directors
The Board unanimously recommends
that you vote “FOR” Proposal No. Two to approve the Adjournment Proposal.
OTHER MATTERS
Management and the Board of the Company know
of no matters to be brought before the Special Meeting other than as set forth herein.
DELIVERY OF DOCUMENTS
TO STOCKHOLDERS SHARING AN ADDRESS
Only one Notice of Internet Availability of
Proxy Materials is being delivered to stockholders sharing an address unless we have received contrary instructions from one or more of
the stockholders. Upon the written or oral request of a stockholder, we will deliver promptly a separate copy of the Notice of Internet
Availability of Proxy Materials to a stockholder at a shared address to which a single copy was delivered. Stockholders desiring to receive
a separate copy now or in the future may contact us at our corporate offices located at 9717 Key West Ave, Suite 100, Rockville, MD 20850,
or by telephone: (301) 869-9683.
Stockholders who share an address but are
receiving multiple copies of the Notice of Internet Availability of Proxy Materials may contact us through our corporate offices at 9717
Key West Ave, Suite 100, Rockville, MD 20850, or by telephone: (301) 869-9683 to request that a single copy be delivered.
STOCKHOLDER PROPOSALS
Proposals from stockholders intended to be
presented at the next annual meeting of stockholders should be addressed to OpGen, Inc., Attention: Corporate Secretary, 9717
Key West Ave, Suite 100, Rockville, MD 20850. We must receive the proposals by no earlier than 120 days and no later than 90
days prior to the first anniversary of the date on which this Proxy Statement was first made available to our stockholders in
connection with the 2023 Annual Meeting, or no earlier than December 28, 2023 and no later than January 27, 2024. If we change the
date of the next annual meeting by more than 30 days from the anniversary of this year’s annual meeting of stockholders,
stockholder proposals must be received a reasonable time before we begin to print and mail the proxy materials for the next annual
meeting and not later than 10 days following the announcement or public disclosure of such meeting date in order to be considered
for inclusion in the proxy materials. Upon receipt of any such proposal, we shall determine whether or not to include any such
proposal in the proxy statement and proxy for next year’s annual meeting in accordance with applicable law. It is
suggested that stockholders forward such proposals by Certified Mail—Return Receipt Requested. Any nominations for director
positions will be accepted in accordance with the procedures described in the Company’s proxy statement for its 2023 annual
meeting of stockholders under the heading “Procedures for Nominating a Director Candidate.”
INCORPORATION BY REFERENCE
We hereby incorporate by reference the following
items into this Proxy Statement: Items 7, 7A, 8 and 9 of Part II of our Annual Report on Form 10-K for the fiscal year ended December
31, 2022, which was filed with the Securities and Exchange Commission on March 30, 2023. Representatives of our auditors for the current
year, UHY LLP, are expected to be present at our Special Meeting to respond to appropriate questions and to make a statement if they so
desire.
OPGEN, INC.
9717 Key West Ave, Suite 100
Rockville, MD 20850
SPECIAL MEETING OF STOCKHOLDERS –JUNE
30, 2023
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned stockholder of OpGen,
Inc. hereby constitutes and appoints Oliver Schacht, Ph.D. and David Caplon as attorneys and proxies, with full power of substitution,
to appear, attend and vote all of the shares of common stock standing in the name of the undersigned at the Special Meeting of Stockholders
to be held at the Company’s offices located at 9717 Key West Ave, Suite 100, Rockville, MD 20850 on June 30, 2023, beginning at
10:00 a.m., local time, and at any adjournments or postponements thereof, upon the following:
Proposal One: Approval
of the issuance of up to 10,892,728 shares of our common stock upon the exercise of our common stock purchase warrants issued to an institutional
investor in and in connection with our best efforts public offering that closed on May 4, 2023 that may be equal to or exceed 20% of our
common stock outstanding before such offering.
☐ FOR |
☐ AGAINST |
☐ ABSTAIN |
Proposal Two: Approval
of an adjournment of the special meeting, if necessary, to solicit additional proxies if there are insufficient votes in favor of Proposal
One.
☐ FOR |
☐ AGAINST |
☐ ABSTAIN |
The undersigned hereby revokes any
proxies as to said shares heretofore given by the undersigned and ratifies and confirms all that said proxy lawfully may do by virtue
hereof.
THE SHARES REPRESENTED HEREBY
WILL BE VOTED AS SPECIFIED HEREON WITH RESPECT TO THE ABOVE PROPOSALS, BUT IF NO SPECIFICATION IS MADE THEY WILL BE VOTED FOR THE PROPOSALS
LISTED ABOVE.
Please mark, date and sign exactly
as your name appears hereon, including designation as executor, trustee, etc., if applicable, and return the proxy in the enclosed postage-paid
envelope as promptly as possible. It is important to return this proxy properly signed in order to exercise your right to vote if you
do not attend the meeting and vote in person. A corporation must sign in its name by the president or other authorized officer. All co-owners
and each joint owner must sign.
Please check if you intend to be present at the meeting: ☐
Date: _______________________
Signature: ___________________
Signature: ________________
Title: _________________
☐ I agree to receive
all future communications related to these holdings electronically via the email address provided below. I understand I am able to change
this selection at any time in the future.
EMAIL ADDRESS:
Voting Instructions
You
may vote your proxy in the following ways:
☐
Via Internet:
☐ Login
to https://annualgeneralmeetings.com/opgnsp2023
☐ Enter
your control number (12 digit number located below)
☐ Via Mail:
Pacific Stock Transfer
Company
c/o Proxy Department
6725 Via Austi Pkwy, Suite 300
Las Vegas, Nevada 89119
CONTROL
NUMBER
You may vote by Internet
24 hours a day, 7 days a week. Internet voting is available through 11:59 p.m., prevailing time, on June 29, 2023.
Your Internet vote authorizes the named proxies to vote in the same
manner as if you marked, signed and returned your proxy card.
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